R v B, RP - [2021] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v B, RP
[2021] SADC 9
Ruling of his Honour Judge Stretton
9 February 2021
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - UNRELIABLE AND HOSTILE WITNESSES
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
The prosecutor assessed that a potential prosecution witness was not a witness of truth and consequently would not be called by the prosecution. The defence applied pursuant to Rule 49 that the court request the prosecution reconsider their decision not to call the witness, and that if the prosecution do not call the witness the prosecution be stayed.
The High Court in R v Apostilides makes clear that the prosecution decision whether or not to call a witness is unreviewable at trial level. The trial judge may ask why and suggest the decision be considered. The prosecution is however not required to provide reasons to the trial judge or the defence. If reasons are given, a trial court should not adjudicate on the sufficiency of those reasons. The prosecution obligation to call all relevant and admissible evidence does not extend to witnesses who the prosecution regard as not witnesses of truth. The prosecution obligation to call all relevant and admissible evidence is an adjunct of the prosecution role and is not a duty to the accused reviewable at trial and accordingly, the decision may only be challenged on appeal on the basis that a miscarriage of justice was caused. On appeal, the issue will not be whether the decision was correct at the time it was made, but whether when the trial is assessed in review, a miscarriage of justice ensued because the witness was not called by the prosecution.
The DPP stance that the prosecutor allocated to the trial is legally required make the witness assessment personally is not necessarily correct. On analysis, Apostilides is not authority for that proposition. That stance is now also unnecessary given the statutory independence of the DPP, is out of step with current prosecutorial decision making practice and modern managerial accountabilities, and when combined with the practice of regularly changing prosecutors and not allocating a prosecutor until shortly prior to trial results in a number of significant practical problems, repetition of work, uncertainty and potential unfairness for both the prosecution and to the defence.
Authority to the effect that the prosecution must call a witness they do not believe is a witness of truth if they cannot conclusively establish that the witness will not be a witness of truth potentially strikes at one of the foundational elements of the adversarial trial process and should be reconsidered.
Held:
1. It is not appropriate to adjudicate on the sufficiency of the prosecution’s basis not to call a witness.
2. There is no basis to request the prosecution reconsider their decision. The prosecution is not requested to do so.
3. There is no basis for a stay. The prosecution is not stayed.
4. The process of asking the court to request the prosecution reconsider their decision envisages a summary process conducted on the papers only.
5. R v Apostilides is not authority for the proposition that the prosecutor allocated to the trial must personally assess the witness’ credibility and decide whether they be called.
R v Apostilides (1984) 154 CLR 563; Nguyen v R (2020) 94 ALJR 686; R v M, RS (2018) 131 SASR 24; Ratten v R (1974) 131 CLR 510, applied.
House v R (1936) 55 CLR 499; R v M, RS [2016] SADC 166; R v M, RS (No. 2) [2017] SADC 23, discussed.
Richardson v R (1974) 131 CLR 116, considered.

R v B, RP
[2021] SADC 9

This is a pre-trial application by the accused asking the Court to invite the prosecution to reconsider a decision they have made not to call a witness in the accused’s upcoming trial.[1]
[1] At an earlier (eventually vacated) 2019 trial date the previous prosecutor had assessed the witness EO the accused’s de-facto partner as not a witness of truth, and had consequently decided not to call her. The current defence Rule 49 application was foreshadowed on 9 November 2020, the day the current trial was originally due to commence. The trial did not commence on that day due to late pre-trial applications by both parties and that the witness concerned had failed to attend her pre-trial DPP proofing and then said she could neither attend the DPP or attend court for several days. She cited claimed illness and the taking of a COVID test. The proofing finally occurred on the morning of 11 November 2020. Based on that DPP proofing, the DPP again made the assessment that EO could not be called as a witness of truth. The defence Rule 49 application was made that day, and the defence requested a further day to prepare. Accordingly, the application came on in the afternoon of 12 November 2020. At the request of the defence the corroborating police officer overnight had provided a 14-page statement corroborating the proofing that had occurred between the prosecutor and the witness, and on receipt of that the defence requested until the following week to further prepare. The time was granted until the following Monday 17 November 2020. The following Monday the State went into lockdown such that no jury trials could commence for an uncertain time into the future. The Rule 49 application substantively proceeded on 3 December 2020.
The application also asks the court ‘… to request the DPP to call the witness … to ensure the accused receives a fair trial and not be subjected to the risk of a miscarriage of justice’.
The accused also seeks a stay of the prosecution unless the DPP calls the witness.
Background
The accused is charged with maintaining an unlawful sexual relationship with his biological granddaughter, AC.
The prosecution case is that AC had at the age of four been placed in the care of the accused and his de-facto partner EO. It is alleged that from a time when AC was 8 years old the accused commenced and then maintained an unlawful sexual relationship with her by touching AC on the breasts and vagina and causing her to touch his penis. It is alleged that the conduct continued until the accused moved out of the home in mid-2015. AC was then 15 years of age.
EO is the witness in question. The DPP has declined to call EO as successive prosecutors do not believe she will, if called, be a witness of truth. Whilst there is no requirement whatsoever for them to do so, the DPP has provided detailed written reasons for that decision. The witness’ statements are all available to the defence. The witness is available to the defence.
Preliminary issue and practical problems
It seems that the DPP have for some reason taken the view that the individual DPP staff member conducting the trial must come to their own individual assessment. That stance is outside the scope of reasons necessary to deal with the application. It is based on the DPP’s interpretation of historical authority, and the event having already occurred, it would ordinarily be unnecessary to express a concluded view as to its correctness.
The stance has however caused considerable practical difficulty in this matter, difficulties that seem destined to be repeated when the matter next comes on for trial. As the stance is by no means in my view legally correct, it should be addressed.
Even if it was at one time legally appropriate that the individual trial counsel instructed by the DPP personally make the decision, it may no longer be appropriate considering the structures and improved accountabilities of modern prosecutions, and it creates a potential multiplication of effort and a myriad of practical and potential problems.
Whilst true it is that some authorities refer to the decision being that of ‘the prosecutor’, how comfortably that sits with the primary responsibility for all prosecutions now being with the statutorily independent DPP, and the modern system whereby most primary decisions concerning trials are taken by senior DPP officers on behalf of the statutorily independent DPP then conveyed to individual sometimes junior DPP officers for implementation, is indeed problematic.[2]
[2] The DPP is the informant and bears the responsibility for the prosecution and makes all other decisions in relation to the prosecution of matters, beyond the tactical and strategic decisions that occur and arise in the course of a trial. It would seem incongruous that this decision, which should be made well prior to trial to allow both side to prepare accordingly, be reserved to the trial counsel, however junior they be and however shortly prior to trial they are allocated. It also means that every time there is a change of prosecuting counsel the whole decision needs to be revisited. It means that if as is often the case a prosecutor is not allocated until a short time before trial, then that decision cannot be made until that time. A change of prosecutor, could result in a change of decision, and this could happen each time a new person is allocated the trial file.
The experience of this court is that trials are often allocated seemingly on a triage basis very shortly prior to trial; and often allocated either to junior prosecutors or counsel from the bar. Is it desirable that important decisions as to whether a witness should be called or cannot be relied upon as a witness of truth, be reserved to the last-minute decision of a junior DPP prosecutor allocated the trial, or an outside counsel, rather than the DPP personally or senior DPP officers?
This matter was originally listed for trial in August 2019. The prosecutor allocated to that trial made an assessment that EO was ‘not reliable, trustworthy, or is otherwise incapable of belief’ and indicated that the DPP would not call her as a part of the prosecution case. That trial date was vacated on the application of the defence.
A new DPP prosecutor was allocated shortly prior to the new trial date. So that person has been required by the DPP to assess the issue anew. That person has come to the same decision. Both prosecutors produced detailed reasons for their respective decisions. The current process has taken all the several days allocated to the trial such that, albeit in light of some other contributing circumstances, the trial could not proceed during its allocated time and is now adjourned into the future.
The court was told that when the matter next comes on for trial there will likely be an entirely new prosecutor. So, on the current DPP approach, the entire process will need to be repeated, yet again. There will need to be yet another proofing of the witness, entirely unnecessary for the purposes of trial but just directed to whether a third prosecutor will also assess the witness as not a witness of truth. Then that prosecutor will, so it seems, produce detailed written reasons. If the same decision is reached, then a further Rule 49 application will be made, and a further voir dire hearing held. If the new prosecutor is again not appointed until shortly prior to the next trial the whole process may, like it has done on this occasion, entirely derail the trial and require it to be adjourned to the next available trial date, perhaps another 12 months into the future. The process could hypothetically go on forever.
It must not be forgotten that this matter is a sex offence where the victim was a child and is meant to have a degree of priority listing. That is being entirely frustrated.
Accordingly, the current DPP stance that the counsel allocated to the trial must personally make the decision creates serious practical difficulties. These difficulties are exacerbated where, as here, the DPP regularly changes the prosecutor allocated to the matter, and allocates that prosecutor only shortly prior to trial. Hence, I address the legal correctness of the stance.
Who is required to make the decision not to call a potential prosecution witness
The High Court in the case of R v Apostilides,[3] upon which both counsel rely, sets out at page 575 a series of principles that apply when the appropriateness of calling a witness by the prosecution is in issue.
1.The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2.The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3.Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4.When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
5.Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6.A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
[3] (1984) 154 CLR 563. The case is most recently referenced with approval by the High Court in Nguyen v The Queen (2020) 94 ALJR 686.
The High Court did not consider who on behalf of the Crown is required to make the decision. The court refers to ‘the Crown prosecutor’ and that such role may on occasion be a lonely one, but does not address what it means by the term, and whether that necessarily means the trial counsel who runs the case on the day. The ‘loneliness’ of the role is described in terms of it having to be made unassisted by the bench. It is not addressing who on behalf of the DPP must personally make the decision. That was not an issue in Apostilides and was not addressed or argued in Apostilides.
The DPP is the modern ‘Crown prosecutor’ responsible for all DPP prosecutions, and the person who instructs individuals to attend to prosecute matters on his or her behalf. The DPP in this state has complete statutory independence as to prosecutorial decisions. That was not necessarily the case at the time of Apostilides. In any event, the issue of who personally must make the decision was not substantively discussed or considered.
Apostilides is accordingly not authority for the proposition that, particularly in the context of a modern statutorily independent DPP with statutory responsibility for prosecutions, that accountabilities and delegations, which might require significant decisions to be made at a senior level and be subject to the checks and balances that modern management and accountabilities expect in relation to decisions made exercising important discretions in the public interest, that such decisions must be made by the trial counsel attending court on the day, and cannot be made by anyone more senior nor indeed by the DPP himself or herself.
As observed earlier, a further corollary of the DPP’s current approach is that if trial counsel changes, on each occasion a new decision must be made by that new trial counsel. There are further impracticalities and potential for unfairness, both to the prosecution and the defence in such a stance. Not the least of which is that neither the prosecution or the defence might know whether the witness will be called until immediately before, or even during the prosecution case, as that decision must await a ‘credibility proofing’ by the latest prosecutor where, as happened here, that prosecutor is allocated moments prior to the trial.[4]
[4] As discussed with counsel at various stages of the application; see for example transcript of hearing 3/12/2020, p 2-5.
The production of reasons
For some reason, the DPP prosecutor produced detailed written reasons for her decision, as if it were a reviewable administrative decision. It simply isn’t.[5] If there is an appeal, that is the stage at which the prosecution will be required to indicate the ‘identifiable circumstances’ which establish the unreliability of the witness.[6]
[5] Richardson v R (1974) 131 CLR 116 at 119.
[6] R v Apostilides (1984) 154 CLR 563.
Further, the defence requested a full statement from the police officer who was present during the proofing, which request was, for some reason even less apparent to the court, then complied with. The resulting 14-page declaration was supplied to the defence.
Those documents were then provided to the court by the defence as ‘the evidence’ said to constitute the DPP decision. The defence then embarked on a detailed challenge to the merits of the DPP decision. This included attacking the decision-making process of the prosecutor in question based on what was articulated in her written reasons, as if the prosecutor’s reasons were a judgment or a formal administrative decision, or she was a witness herself.[7] Indeed counsel for the defence suggested that House v The King[8] reasoning was applicable to his attack on the prosecution’s decision.[9] The defence submissions included inviting the court to not accept the prosecutor’s conclusions based on the written reasons given, inferentially requiring the reasons of the prosecutor to display detail and analysis adequate to withstand a full appellate review process or akin to AAT scrutiny. The defence stopped short of requesting the prosecutor to take the stand for cross-examination. Yet the attack on the prosecutor’s written reasons as if it were a judgment, or a reviewable administrative decision finally affecting a person’s rights, when it was neither, and would not have been compiled for that purpose, is obviously problematic.
[7] For example, transcript of voir dire 3/12/20 at p 25 and at transcript of voir dire 17/12/20 at p 6.
[8] (1936) 55 CLR 499.
[9] For example, transcript of voir dire 3/12/20 at p 26.
The, in some senses almost throwaway, single line in Apostilides that the Judge can ask the prosecution to reconsider its unreviewable position, is now being used to justify, indeed has now morphed into the holding of, full Rule 49 pre-trial hearings where the prosecution is calling evidence concerning the prosecution’s decision. The evidence is then potentially contested, and trial judges are being asked to formally rule as to whether they should ask the prosecution to reconsider their unreviewable prosecutorial discretion whether to call a witness.
This is plainly contrary to the second quoted principle set out in Apostilides that the trial Judge ‘…is not (to be) called upon to adjudicate the sufficiency of those reasons.’
An explanation for this may lie in the decision of R v M, RS. [10] The prosecutor in this matter said, per the case of R v M, RS ‘… a new spin was put on the phrase’ ‘unreliable, untrustworthy or otherwise incapable of belief’; such that the DPP had gone down the detailed evidential road that seems to have been taken.[11]
[10] (2018) 131 SASR 24.
[11] Transcript of voir dire, 12/11/20, p 7.
Indeed, the process taken at trial in R v M, RS departed entirely from the clear principle articulated in the unanimous decision of the High Court in Apostilides; that the trial judge should not adjudicate the sufficiency of the DPP’s stance or, if reasons are given by the DPP beyond the basic ground that the DPP do not consider that the witness if called will be a witness of truth, that the trial judge should not adjudicate on the sufficiency of the reasons for that decision.

The trial judge in R v M, RS adjudicated at length on the adequacy of the prosecution’s stance, even embarking on his own protracted consideration of the credibility of the witness in the context of all the other evidence in the case. This is reflected in a 26-page judgment delivered prior to the trial,[12] The trial judge was persuaded to embark on the same process a second time when the application was repeated at the close of the prosecution case. Again, a detailed substantive assessment of the prosecution’s decision and the credibility of the witness concerned was undertaken. This is reflected in a further 11-page reserved judgment.[13]
[12] R v M, RS [2016] SADC 166.
[13] R v M, RS (No 2) [2017] SADC 23.
On appeal[14] albeit in the context of addressing a bias issue, the Supreme Court did observe that the course of conduct undertaken by the trial judge on that occasion was fraught with risk and should not have been undertaken in the way it was. The court said that any invitation to the prosecution to reconsider a decision not to call a witness did not require the judge to form any concluded view as to the risk of miscarriage of justice should the witness not be called, i.e. in the case at bar both there and here, the credibility of the witness in question, basing the prosecution’s decision. The Supreme Court did acknowledge the correctness of the principle as articulated in Apostilides.[15] The appropriate scope of such pre-trial hearings and what they should entail was not conclusively articulated beyond the observation that it should in the instance of that matter, have been limited to assessing from the papers that the witness in question would ordinarily have been expected to be able to give evidence that would have a bearing on issues in dispute and hence ask the prosecutor the reason why the witness was not being called.[16] A wholesale attack on the reasons then given, as was undertaken in the case then and now at bar, was not appropriate.
[14] (2018) 131 SASR 24.
[15] (2018) 131 SASR 24 at 41 and 43.
[16] (2018) 131 SASR 24 at 60.
What was contemplated is a simple two stage process. Firstly, if on the papers it is apparent that the witness can give evidence relevant to the case but is not being called the judge may ask why, and remind counsel of the principles set out in Apostilides and may suggest they reconsider their position.[17]
[17] (2018) 131 SASR 24 at 60.
The hearing process
In short, Apostilides makes clear that the prosecution will determine in their unreviewable discretion the evidence they call. There is no requirement for the prosecution to give any reason to the trial judge. The judge may enquire as to the reason, and whether or not a reason is then given, may suggest the decision be reconsidered. It remains entirely for the prosecution to decide the evidence they call. The Judge is not to assess the adequacy or correctness of that decision.
If the matter goes on appeal, a qualitative assessment is then made; not of the correctness of the prosecutor’s decision at the time it was made, but rather whether the failure by the prosecution to call the witness has resulted in a miscarriage of justice.
The processes undertaken at trial in R v M, RS, and that which the parties followed in this matter, are almost unrecognisable when assessed against the process articulated succinctly by the High Court.
At trial in R v M, RS, and in the matter now at bar, a fully contested Rule 49 voir dire hearing has been embarked upon at the behest of the defence without objection by the prosecution, evidence has been called, then a wholesale attack on the adequacy and the legitimacy of the prosecutorial assessment of their own witness’s credibility has been mounted. No objection to that course was taken by the DPP, who provided both written reasons to the defence, and obtained and provided the detailed statement of the police officer attending the briefing to the defence, then consented to the matter being adjourned to allow the defence to assess that material and then argue about it.
In the case at bar, much of that attack did not in fact address the primary issue of whether the DPP’s assessment of EO as a witness that if called could be relied upon as a witness of truth, was justified. Rather, much was a detailed argument as to why it was to the defence’s tactical advantage that the witness be called by the prosecution, so that the prosecution could not cross examine her but the defence could.
Paradoxically, the defence also took the stance that the witness was not a witness of truth, yet maintained that the prosecution should call her so that the defence could cross-examine her.
Grounds of the application
The grounds of the application are given as:
1.That the witness can give evidence capable of having a bearing on the resolution of issues in dispute, namely whether the complainant engaged in sexual activity with the accused in the caravan or at Coobowie, (see paragraphs 9, 10, 15 and 22 of the complainant’s statement dated 26^th July 2019).
2.That the accused cannot receive a fair trial in the absence of the witness EO.
Some important principles
This application can be dealt with efficiently and succinctly by the application of the law as set out in the High Court in Apostilides. I therefore repeat:
There is a general obligation that the prosecution calls all relevant and admissible evidence in a criminal prosecution. Nothing in these reasons should be interpreted as suggesting any departure from that important principle.
The trial judge is not entitled to qualitatively or substantively assess a prosecution decision to not call a witness. The fact that the judge may ask for a reason and suggest reconsideration does not change that position. The prosecution is not required to provide the trial judge with a reason, and if a reason is provided, there is simply no point in the trial judge embarking on an assessment of the adequacy of that reason as the decision is not reviewable at the trial level and remains entirely with the prosecution.
Some recent authority is to the effect that it is for the prosecution to conclusively establish the witnesses’ lack of credibility, rather than simply make an informed decision about it. I make the following observations for the assistance of those who may consider the issue in the future.
There are fundamental questions concerning the degree to which a trial court, and indeed appellate courts, should, beyond traditional issues of the admissibility of prosecution evidence, concern themselves with the way the prosecution runs its case, and if it is to concern itself in the way requested, the question of the degree to which the court should inquire into the prosecutorial decisions concerned is fraught.
What none of the cited Supreme Court authorities globally address, as they do not appear to have considered it, are the conceptual ramifications of allowing a forensic pre-trial inquiry into prosecutorial decisions not to call a witness. The Court in R v M, RS identified one issue with doing so; that by qualitatively considering and forming a view as to the credibility of the witness in question in that case when assessing whether he should ask the prosecution to reconsider whether the witness be called, the trial judge created the apprehension that he may have prejudged the case and should have disqualified himself for a reasonable apprehension of bias.
More generally, the breadth of the application, seeking as it does, firstly a request for the DPP to reconsider its decision not to call a witness, then if that’s not successful a direct request by the court that it call a particular witness, and finally a stay of its entire prosecution should that not occur, would, if allowed, effectively mean that the trial judge could dictate to the DPP that it call a witness it does not wish to call, even, as here, a witness that neither party regards a witness of truth, on pain of staying the prosecution entirely.
Further, for the court either at trial level, or at appellate level, to effectively impose obligations on the prosecution beyond general obligations of fairness, which oblige it to call evidence that it does not wish to call or does not regard as credible or reliable unless that lack of credibility or reliability can be ‘conclusively established’, raises fundamental issues that go to the root of and potentially threaten the integrity of the trial process itself.
Firstly, criminal trials in this country are run on the adversarial principle. Innumerable historical and academic writings together with countless judgments over the centuries have described the adversarial trial principle and the fundamental elements of the consequent adversarial trial process. That process has been refined by legislation and the common law over the centuries. It serves no purpose to recount that history in a District Court judgment, the principles are fundamental and well known.
A foundational element of the adversarial trial process is that each party decides how to run their case. Each party is entirely responsible for what admissible and relevant evidence it calls. Each party is inherently likely to be in the best position to make decisions about their own case, much more so than their opponent or the trial judge. The reasons for that are so logical and obvious they scarcely need stating. One obvious reason is that the party considering calling a witness is usually in the best position to assess the reliability and credibility of the witnesses that they propose to call; they ordinarily proof and have pre-trial access to the witness. Overall, each party may call all or any evidence they wish, subject only to the rules of relevance and admissibility. Consequently, so the theory goes, each case will be put at its highest and best.
Another foundational feature of the adversarial process is that each party may rigorously test and scrutinise the evidence led by the other party. Hence the evidence led as the truth by each side is fully and transparently tested during the trial process.
The case is then determined by an independent jury, by way of a trial which is run fairly by an impartial judge. An important hallmark of that impartiality is the principle that the judge must remain above the fray, and entirely separate from the interests, tactics and forensic decisions of the parties.
The separate and autonomous decision making of each party, the important independent roles played, and the vigorous tension and consequent scrutiny and cross checking between all the elements described are at the very root of why the proponents of the adversarial system say it works so well.
The settled historical position was that in principle the prosecution should as a matter of both fairness to the accused, and as the course most likely to arrive at the truth, call all the credible and reliable, relevant and admissible evidence available to it in a prosecution. The requirements of fairness to the accused and the course most likely to arrive at the truth would be entirely frustrated if the prosecution were to call evidence that it did not assess as likely to be truthful. Hence the prosecution is not required to call a witness who it assesses is not a witness of truth. So far so good.
The prosecutorial decision as to the calling of evidence was not reviewable pre-trial. However, if there was a departure from these principles causing a miscarriage of justice, the conviction would be overturned in a subsequent appeal.
The original Apostilides principles preserve and protect all of these foundational elements, checks and balances inherent in the trial process. A fully contested pre-trial Rule 49 process that seeks to contest prosecutorial decisions not to call a witness cuts across those foundational elements of the adversarial process. That is why the High Court has plainly articulated that it should not occur.
A further element of the adversarial trial process should not be overlooked. It has long been recognised that counsel is ethically bound not to call a witness who they believe will not tell the truth. To require the prosecution to call such a witness strikes at the foundation of that principle.
It also has the potential to substantially mislead the jury. Juries will assume that a party, particularly the Crown, calling a witness is doing so because they are advancing that witness as credible and reliable. They will not know that the party calling them regards the witness as a liar, as the party calling them will be unable to put to their own witness that they are a liar.
But perhaps most importantly, a foundational safeguard of the efficacy of the adversarial trial process; that contested evidence be rigorously tested by cross examination undertaken by the party not accepting the truth of that evidence, is rendered entirely ineffective where the party who regards the witness as untruthful is required to call them in chief and hence is rendered unable to cross-examine them.[18] That in itself is likely productive of miscarriages of justice.
[18] Richardson v R (1974) 131 CLR 116 at 122.
The appropriateness of the ‘compromise position’ advocated in some authorities that the crown should in that instance simply call the witness and provide them for cross examination solves none of these issues.
Requiring a party to call a witness that a party to an adversarial trial process does not regard as truthful and does not rely upon, unless that party can categorically and objectively demonstrate that witness’ objective untruthfulness to the satisfaction of an appellate court, an approach taken in some recent appeals, runs the risk of subverting the foundational elements of the adversarial trial process that have long been regarded as the reason for its efficacy as a system of trial.
I make these comments in the hope that the ongoing development of the law does not lose sight of the ramifications the evolutionary heightening of this ‘obligation’ on the prosecution may be having on the fundamental efficacy of the adversarial system. These considerations may well have formed the basis for Nettle J’s recent reminder in Nguyen v The Queen that the Anglo-Australian system of criminal justice is fundamentally accusatory and adversarial and, as such, is not and does not purport to be ‘an examination and assessment of all the information and evidence that exists bearing on the question of guilt or innocence’. [19] Nettle J consequently observed that beyond the obligation that a prosecution put its case fully and fairly he was not prepared to agree that the prosecution ought to be under a duty to call all ‘cogent’ and admissible evidence available to it.
[19] Nguyen v R (2020) ALJR 686 at 697-698, Ratten v R (1974) 131 CLR 510 per Barwick CJ at 517.
Analysis of the application
This application may be determined in relatively concise terms. As the prosecution had already provided detailed reasons for its decision not to call EO, the preliminary step envisaged by the authorities whereby the judge may ask for a reason was rendered otiose. Detailed reasons had already been provided.
The application is that the court asks the prosecution to reconsider that decision, and if the decision is not reversed, stay the prosecution.
The prosecutor provided a detailed list of reasons why she had formed the view that EO was not a reliable, trustworthy or believable witness. That analysis was reasoned, apparently logical, and set out the history of contact between EO and the authorities. It also set out the evidence provided by EO over time, and observations of her behaviour at critical moments in time, particularly towards the alleged victim.
The nature of the evidence provided, the recorded inconsistencies over time, her behaviour towards authorities and with the accused, and in particular towards the complainant provide an entirely rational basis to form the view of the witness taken by the prosecution that she would not be a witness of truth.
In my view, in accordance with the High Court’s clear expression of principle in Apostilides, this court should not assess the adequacy of the prosecution’s decision and conclusions. Without qualitatively assessing the adequacy of the prosecutor’s assessment of the witness nor the correctness of the decision not to call the witness, there is nothing on the face of the materials brought to the court’s attention that would require an invitation to the prosecution to reconsider its position.
If I am wrong about that, and if consequently the court is required to embark on a qualitative assessment of the prosecutor’s decision for the purposes of then deciding whether to suggest to the prosecution that they reconsider; in the court’s view, on a qualitative assessment, the prosecution’s decision is fully justified. On the material presented, amongst other things her inconsistencies, inaccuracies, the animosity and lack of co-operation shown towards the prosecution, and her behaviour towards the complainant, the witness could not be advanced by any prosecution as a witness of truth, and it would be unethical for prosecuting counsel to proffer her as such either by calling her in examination in chief or by calling her for the purposes of being cross-examined by the defence, considering the matters within prosecuting counsel’s knowledge and the prosecutor’s belief that she is not a witness of truth.
The court has had regard to the defence submissions that for the range of reasons articulated by Mr Redmond it would be to the defence’s tactical advantage for the witness to be called by the prosecution, which included his assessment that the witness was not a witness of truth either, and that the defence could elicit matters they wish to put before the jury by cross-examination and the prosecution would be prevented from doing so.[20] None of those matters provide any sufficient basis to require the trial Judge in this case to request the prosecution reconsider their decision not to call the witness they have concluded will not be a witness of truth.
[20] The factual reasons why the defence submitted that EO’s evidence was relevant to the defence case and hence why it would be unfair if the prosecution were not to call EO are conveniently and briefly summarised in the transcript of the voir dire hearing on 3/12/20 at page 35. The court has considered all the defence submissions in full.
The witness is available to the defence, should the defence take the view that she can provide any evidence to support the defence. The court will authorise or issue a subpoena if necessary or requested.
Further, for a prosecution to be required to call a person they regard as an untruthful witness to support the defence case, so far departs from the fundamental principles underpinning the efficiency and effectiveness of the adversarial trial process itself, that it would require good reason in an individual case to require such a course. No such reasons exist in this case.
Hence it is not appropriate to, and therefore the court declines to, ask the prosecution to reconsider its decision.
Neither counsel could locate any authority for the proposition that it might be appropriate to stay the prosecution in these circumstances, or any authority where a prosecution has ever been stayed in similar circumstances. Indeed, the contrary is the case.[21] The proposition is without merit. There is no basis to stay the prosecution.
[21] Nguyen v R (2020) ALJR 686 per Edelman J at 701-702.
Conclusions
The prosecution is not requested to reconsider its decision as to the calling of EO as a witness.
There is no basis to stay the prosecution.